By Professor Lorna Woods
The European Court of Human Rights declared the Pirate Bay claim for freedom of expression inadmissible as being manifestly ill-founded [summary, PDF]. It follows the case earlier this year of Ashby Donald (Appl. nr. 36769/08 judgment 10th January 2013) and while it follows much of the reasoning in Ashby Donald, the court’s decision here carries some unusual points worth noting.
Ashby Donald and the Pirate Bay case both take place in a digital context in that they both relate to use of the Internet. Ashby Donald was noteworthy as it seems to accept that speech infringing copyright can in principle claim protection.
This might seem good news for Pirate Bay, but the terms of Ashby Donald recognised the need to protect copyright, meaning freedom of expression by no means automatically trumps copyright protection. It certainly does not appear to be a pirate’s charter, as is re-affirmed by the admissibility decision in Pirate Bay: Neij and Sunde Kolisoppi v. Sweden (Appl. nr. 40397/12, decision 13th March 2013).
The applicants were both involved in the running of the website “The Pirate Bay”, one of the world’s largest file sharing services on the Internet. They were charged with complicity to commit crimes in violation of the Copyright Act. Subsequently, several entertainment companies brought private claims within the proceedings.
In April 2009, the Stockholm District Court sentenced them to one year’s imprisonment and held them, together with the other defendants, jointly liable for damages. The applicants complained that the finding of complicity had violated their freedom of expression; they should not be held liable for others’ use of their service. Their claim was very broad. The Court summarised it thus:
“According to the applicants, Article 10 of the Convention enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service. In this connection, they referred to international frameworks, expressing a far-reaching right to receive and provide information between Internet users.”
While the Court eventually rejected the claim as manifestly ill-founded, its reasoning might suggest that to some extent accepts this broad-reaching right exists. It started by recognising the importance of Internet, but linked to public sphere (e.g. news) raising the question of the extent to which the Internet is special in this regard.
The Court reaffirmed that “Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information” – but without considering who it restricted and whose right to expression is affected.
The Court then further blurs this point: “the applicants put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention. The Court considers that the actions taken by the applicants are afforded protection under Article 10 § 1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression”.
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